274 F.R.D. 229
S.D. Ill.2011Background
- Casino uses prerecorded voice messages to Total Rewards applicants and collects phone numbers; numbers can be reassigned after attribution; Vigus, not a Total Rewards member, received eight unsolicited calls to his residential line; list generated from customers with consent may not imply consent to prerecorded messages; Vigus seeks class definition covering all US recipients of prerecorded promotional calls by the Casino and seeks to amend to include cellular calls.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Amendment to include cellular TCPA claim | Vigus seeks cell phone claim under §227(b)(1)(A)(iii). | Amendment would be futile; no cell-phone claim against Vigus. | Amendment denied; futile for lack of standing/claims. |
| Ascertainability of the proposed class | Class should include all recipients of prerecorded calls. | Class overbroad due to voluntary consent and unmanageable criteria. | Class not ascertainable as defined. |
| Typicality of the named plaintiff’s claim | Vigus’s TCPA claim representative of class. | Many class members consented to calls; Vigus’s claim not typical. | Not typical. |
| Commonality and predominance under Rule 23(b)(3) | Some common issues (consent, TCPA violations) predominate. | Predominance fails due to numerous individualized inquiries (reassigned numbers, EBR, consent scope). | Predominance not satisfied; class certification denied. |
Key Cases Cited
- Oshana v. Coca-Cola Co., 472 F.3d 506 (7th Cir. 2006) (commonality and typicality guidance for class actions)
- General Tel. Co. of S.W. v. Falcon, 457 U.S. 147 (1982) (certification prerequisites and economy of scale principles)
- Morlan v. Universal Guar. Life Ins. Co., 298 F.3d 609 (7th Cir. 2002) (class action framework and certification timing)
- Simer v. Rios, 661 F.2d 655 (7th Cir. 1981) (class action standards and pre-certification considerations)
- Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997) (comprehensive guidance on Rule 23(b)(3) predominance and settlement issues)
- Gene & Gene LLC v. BioPay LLC, 541 F.3d 318 (5th Cir. 2008) (necessity of generalized proof for liability in TCPA class actions)
- Forman v. Data Transfer, Inc., 164 F.R.D. 400 (E.D. Pa. 1995) (illustrative of individualized inquiries in telecopy context)
- Kohen v. Pac. Inv. Mgmt. Co., 571 F.3d 672 (7th Cir. 2009) (typicality and injury considerations in class actions)
- Brill v. Countrywide Home Loans, Inc., 427 F.3d 446 (7th Cir. 2005) (federal question jurisdiction on TCPA claims (jurisdictional note))